I am at present rather at a loss as to the propriety of my immediate return to Niagara and have taken the liberty of troubling you with a few words on the subject by the oppy of Capt. Glegg.

Official Applications in the Land-granting Department are continually occurring, and it is besides necessary that I should be here on the 4th of Jany (the first day of Term.)--

Your goodness has placed me at your command in two capacities -- I need not observe that the proper discharge of the one requires from a person so young and inexperienced as I am, more than ordinary application -- but at the same time I seek no exemption from the inconveniences or dangers which may attend the other, and which all must in so good a cause be ambitious to share -- To be useful in either situation will require my exclusive attention, and I am only anxious to know in what capacity any services I can render will be most benificially [sic] employed.

In the flank Compy of Militia to which I belong there are two Subaltern Officers besides myself, and if I should be ordered to remain here may I be suffered still to retain my commission so that I shall have some certain character to appear in when any particular occasion shall call for the assistance of all.

I trust you will excuse this trespass upon your time, every minute of which is at present so precious, and that you will not conceive from what I have written the least wish on my part to avoid any duty however severe which circumstances may require, and I am competent to perform.

(Copy of Opinion required by the President's letter of 23rd Decr 1812--)

Question | Can the Inhabitants of the Michigan Territory be legally called upon by this Government for military service against the United States?--

I am of opinion they cannot-- By the Capitulation of the 16th. Augt 1812 Fort Detroit, only, with the Troops, Regulars, as well as Militia were surrendered to the British Forces-- The consequent proclamation issued by Genl Brock does, indeed, include the "Michigan Territory," but that is merely an Instrument ex parte proceeding from the capitulation, and wherever it contradicts it, it can have no effect--

Supposing, however, the Territory of Michigan to have been actually and expressly ceded by the capitulation of 16th August -- It is an established principle that the acquisition of a Town or Territory taken in war is not fully consummated till confirmed by a treaty of peace, or the entire submission, or destruction of the State to which it belongs, for in the capture, or surrender of a Town &c the possession alone is the point in question, and not the property and right. The Inhabitants of the Territory of Michigan, therefore, are not by our present possession of their country become subjects of our laws, nor can by any legal penalty be compelled to obey them-- To them, therefore, our Militia Laws do not apply.

No other mode exists of forcing them to a military service in the defence of this Province, except by the exertion of power as their conquerors, and on the strength of a temporary possession of their Territory, to compel them to act against that allegiance which until formally relinquished by treaty they must still owe to their general Government--

Jno. B Robinson
Actg. Atty Genl.
Transmitted to the Secy.
Decr. 26th.

3. Opinion on Question, circa Dec. 1812.

During the existence of an Armistice between the forces on the respective frontiers a Boat loaded with salt drifted from the American side, and came over to our Shore near Fort Erie -- Supposing it private property was its detainer lawful?--

In the first place were no armistice existing, the only considerations which could suggest themselves on the subject, are the two following.

1. That it is alleged to be private property -- This can signify nothing, it is the common case of captures at sea----

2nd. It came into our possession by accident.

Had this accident been inevitable the case might have been different, and would have accorded with the instances of shipwreck, but here is no ground for that pretence, and the case comes clearly within this broad principle in the law of nations ' "A Nation on every opportunity lays its hands on the enemy's goods, appropriates them to itself, and thereby besides weakening the adversary, strengthens itself, and at least in part procures an indemnification, and equivalent either for the very cause of the war, or for the expences, and losses resulting from it – A Nation here does itself justice."Vattel B.3. c.9, s.161.

But the justice of such a seizure during the existence of active hostilities being unquestionable, it is next to be enquired what difference in the legality or equity of the seizure is produced by the Armistice.

Writers on the laws of Nations observe that tho' the terms "Truce," and "Cessation of Hostilities" be often indiscriminately used, yet they are properly of different imports -- And they mark the distinction between general, and universal truces, and particular truces, or temporary suspensions of hostilities-- Had a general truce subsisted the property would have been protected -- "For to seize persons, or things belonging to the Enemy without cause given or some particular fault is an act of hostility, and consequently not allowable during a truce"- V.B.3.C16.S255 --- Here, however, the word "Truce" is used in it's [sic] unlimited sense, and in that view the principle is justly enough deduced from what follows, "Enemies may naturally come, and go into each other's country during a truce, especially if made for a considerable time equally as in time of peace, hostilities being all suspended." But what follows marks evidently the distinction in this particular case – 'But every Sovereign as he would also in time of peace, is at liberty to use precaution that these intercourses may not prove detrimental; there is just cause for suspecting people, with whom he is soon to renew the War -- At making the truce, he may declare that he will admit none of the enemy within his territories"---

This, I presume, is the case in question, a mere suspension of hostilities, by which both parties are protected from attacks within their own boundaries without a limited notice-- But to their own boundaries both are confined, and beyond them neither the person nor property receive any protection from the influence of the Armistice which they would not be entitled to "bello flagrante". The person certainly would not, and a state of warfare wherein the person may be affected, and not the property is, I believe, unknown--

4. Robinson to unspecified, Dec. 31, 1812.

In answer to Mr. SecretaryMacMahon's [sic] Letter of the 23rd Instant, requesting, for the Information of His Honor, the President, my report respecting the actual existence of a combination said to have been entered into by certain Sectaries near York, and elsewhere, who are exempt from military service, (paying in lieu thereof a compensation annually) and who are said to have formed, or to be forming an Association not to sell any part of their actual crop, so that it can by any means aid in nourishing those who are employed in the Defence of the Province, and, moreover, not to raise any more of the necessaries of life, than will be necessary for their own consumption. I beg leave to state that from strict investigation, I can-not find that any such combination to any extent exists. Besides personal inquiries, I have written to the Magistrates residing in the immediate neighbourhood of those sectaries, and have received an assurance from one of them that he neither knows, nor can learn any thing of the nature alluded to, while the other can furnish no proof of the charge which, I believe, originated with himself.

If any combination having in view the mischievous objects alleged has been formed, or should be entered into, I am of opinion that no religious tolerations can extend to screen it, but that it may be furnished like other conspiracies to the prejudice of the public good upon Indict in the King's Bench, or before the Sessions of the Peace.

As to the steps proper to be taken with regard to those whose duty it is to levy the mulct or compensation alluded to, and who neglect to execute it, as by law directed -- I am of opinion that they are liable to an "Information for Negligence of Office," and would upon conviction be furnished accordingly. I take the liberty to state, however, that upon inquiry which I conceived it my duty to make, I am satisfactorily informed that the arrears of these fines, and also those due for the present year will be speedily collected--

In obedience to His Honor's request I beg leave to report the following Provincial Statutes as about to expire.

1. An Act passed 13th March 1811--entitled "An Act to amend, and continue for a limited time An Act passed in the 49th year of His Majesty's Reign intituled An Act for continuing for a limited time the Provisional agreement" &c--limited to 25th March 1813.

2. An Act passed 5th Augt 1812 entitled "An Act to provide for the defence of this Province"-- limited to the end of the then next Session of the Legislature.

I have the honor to be Sir,
yr most obt hbl Servt
Jno. B Robinson
Actg. Atty. Genl.

In answer to your letter I have only to observe that the Provincial Statute, under which the goods seized by you were forfeited, does not warrant the restoration of them even to the owner upon sufficient security, because by your own statement which you apprehend undervalues the articles they are estimated at more than 50£ -- The condemnation was perfectly regular, -- no claimant appeared -- and I presume the sale of the articles must have followed as a matter of course. It appears to me that upon whatever good motives Mr. Dickson's advice may have been given, or you may have acted -- you are personally answerable to the revenue for the value of the seizure, and I hope Mr. Hawn's security may be sufficient to indemnify you.

His Honor the President having submitted to me your letter to him of the 18th ultimo, I now write to request that you will have the goodness to furnish some magistrate in your neighbourhood with full information of the facts on oath, in order that the parties principally criminal may be brought to Justice-- You will be kind enough to inform me when this shall be done---

Your letter of this morning shews that you have mistaken the meaning & extent of the objection (as you call it) made by me to you appearing on the Grand Jury the last Court. I thought I had so fully explained to you at the time the reason of my Observation, that there could have been no misapprehension on your part ---

As to your having been on former Grand Juries, I know nothing of that -- But when I spoke to you on the subject in which you very naturally feel yourself so much interested there was a bill actually before the Grand Jury for a capital felony -- You was [sic] summoned as one of that inquest, and I heard it canvassed in conversation by several of your fellow Jurors, whether you were, or were not entitled to sit as one of their number -- I did not conceive it necessary for me to express an opinion upon the subject, nor did I offer any; but I thought it proper to acquaint you privately that the idea of such an objection existed, and I told you very plainly that if the Grand Jury should find the Indictment submitted to them, the Counsel for the Defendants would very probably plead your disability to sit upon that Jury in arrest of any Judgment that might otherwise pass against their Clients -- I told you, what you might have known, that such an objection could not naturally come from me, that, on the contrary, if it were made, it would be my duty to defend you against it, that the Act of the Jury might be valid -- But still a decision would have to be made, which might call forth discussions very disagreeable to yourself, and involve questions much more important to your interests -- I therefore recommended to you, not officially, but as a friend, to prevent that necessity by withdrawing from the Jury, with the Chief Justice's leave – which you did, and, I think, very properly -- And now you appear to consider me as the author of the Objection, and the "first" (in the words of your note) "to give the idea that all the proceedings are unlawful" ---- You know it was not so --

With respect to the opinion you demand, I need give you none, but I have no objection to say that an Alien is not a proper Grand Juror, and that all persons are aliens to Great Britain, who are not her natural born Subjects, or naturalized by an Act of our Parliament -- Whether your particular case is affected by this rule, you know better than I, and as I shall never needlessly examine, or pass any opinion upon the Subject, I would certainly recommend to you a similar reserve --

The equity of your case I do not deny; that it was the intention of Great Britain to admit you, in this Country to the free enjoyment of every right, I do not dispute -- but what ought to be, and what is the case, are often very different, and you must know that the decision of any matter must be governed by facts as they actually do exist, and not as they might or ought to be --

Your letter to His Honor the President respecting the seizure by your order of some tea and tobacco at the village of St. Regis was referred to me for my opinion. In answer to the Statement it contains I have to observe that it stands merely upon the footing of a military seizure -- The goods could not have been forfeited to our revenue Laws which of course are not in force in Lower Canada, neither were any legal civil means of seizure, or condemnation employed.

The Act was an exercise of force, and its propriety or impropriety depends entirely upon the real facts of the case, to wit whether the property belonged to our friends or enemies of which tho' you express an opinion you do not appear to be certain. If the Tobacco belonged to Mr. Buchanan, as he alleges, his remedy will be sought by action of Trover, or Trespass against the Officer who seized it, in which if he proves a legal title, legally derived to the property in question, he must, and will recover the value of it, to be estimated by a Jury, or by the Court. But if Mr. Buchanan neither has, nor can prove any right, and no other subject establishes a claim to it, it remains a fair, and proper military seizure, and since it has already, tho' rather hastily been sold, the money of course will await the direction of His Honor the Prest as Commander of the Forces respecting the division or other appropriation of it –

I know nothing more that can be said upon the subject, if any other difficulty occurs, you will be good enough to refer to me.

By your desire I take the liberty of communicating in writing a verbal Message which His Honor the President requested me to deliver to you as Chairman of the Honble the Executive Council.

After the possession by the American army of part of our frontier in the District of Niagara, many of the Inhabitants disaffected to our Government took advantage of the facility afforded them by the Enemy's temporary success, and joined them -- Some of these men have left large crops of grain in the Country now almost ready for harvest, which unless some means are taken to prevent it, will be altogether lost -- His Honor conceives the interest of the public requires their preservation, and begs that the Honble the Executive Council will devise some method of authorising him to secure for the benefit of the public the produce of the Lands thus treasonably abandoned.

He thinks this will be best effected by appointing Commissioners in the District to investigate immediately, and report upon the case alluded to, and whose business it will also be to make the necessary arrangements for the preservation of the grain, to appreciate its value, and receive, and answer any claims that may afterwards arise by reason of the execution of this power --

He submits all this, however, to the mature consideration of the Honble the Executive Council only observing that the advanced State of the season requires the measure should be hastened --

In obedience to His Honor's desire signified in your note of the 20th Inst I inclose a draft of a Procln upon the principles mentioned in the C.J.s letter --

At the same time, I beg to be permitted to state thro' you to His Honor that, accordg to my impression of the matter the reference to the Executive Council was merely to obtain the sanction of their advice for the adoption of a measure by His Honor, not precisely consistent with legal provisions, but perfectly equitable in itself, and absolutely necessary in the present situation of the Country. It could not be expected that altho' they icknowledged [sic] the necessity of the object to be attained, and recommended the adoption of some measure to reach it, the Executive Council could furnish the means, because any step taken to that end must in some degree anticipate the operation of the Law, and of course can not be in conformity to it's [sic] rules. The Council have no other means than the Laws afford them of enforcing obedience to any order, consequently if they make an order not sanctioned by the Laws they have no power of enforcing it at all, & should a Commissr in acting under this Procln meet with opposition, he must be supported in the execution of his duty by the military authority.

In fact a particular measure highly just, yet not strictly warranted by Laws is found absolutely necessary for the supply of His Majesty's Troops defending the Province -- The Executive Council appointed for His Honor's guidance & advice have upon reference acknowledged the necessity & recommended the adoption of a measure to meet it -- As Parlt of this Province, & as an Act of that Council His Honor cannot enforce that measure -- as Commr of the Forces he can -- It seems better, then, for the sake of consistency, and propriety, & that evy department may preserve its proper functions, that the measure should expressly originate in that power, which only can produce or uphold it.

Upon these grounds I take the liberty of suggesting that, instead of publishing the Proclamation His Honor should by a military order, or notification as Commr of the Forces appoint the Commission mentioned in that Instrument, & make such order for the regulation of their proceedings as he may deem expedient, and I am the more free in this recommendation, as I observe that the letter of the HonbleC.J. merely suggests the appoint of Commissrs witht expressg by what authority they should be named --

His Honor's discretion however, will determine & I trust what I have said will be found intelligible & reasonable.

We have just received from Kingston the Proclamations for the prohibition of Distillation, and as they are in force within a certain number of days from the date in each District, it is necessary they should be immediately made public -- I have accordingly ordered them to be put up here, and to be sent to the other Districts for publication in like manner -- I recollect that his Honor expressed his sentiments as to the necessity of having whiskey distilled for the Troops.

Unfortunately the Legislature have put it out of his power to prohibit otherwise than generally, so that he cannot licence any particular person to distil for Governt, neither can he do it indirectly by remitting the penalty in any particular case, because half of it belongs to the Informer.

Under these circumstances it is for His Honor to determine by reference to the Commissariat whether it is advisable that the Prohibition should continue, or whether the quantity of grain in the Country will render it prudent to recal [sic] it by a subsequent Proclamation, which he has it in his power to issue whenever he pleases.

You will perceive that now not a gallon of whiskey or other spirits can be distilled, and it becomes important to consider whether the army have other means of supply.

P.S. The Laws of the last Session of the Legislature have never yet been made public -- The omission was occasioned indeed by misfortune, but it is a most serious inconvenience, and injury to the public, and the Government should speedily devise means for having them printed.

Major Stuart communicated to me the object of his command here, and informed me of the reference you had been pleased to give him to me upon the subject. I told him that as Attorney General I could render him no assistance the matter proposed being wholly of a military nature, and that I could not properly have any thing to do with it in my official capacity, as the measures contemplated were not of a nature to admit of legal interference -- Still as a private member of Society, and equally interested with all in the execution of the salutary object in view I would willingly and heartily give him every help I could by furnishing him with all the information in my power, and putting him in the way of procuring it.

You will, of course, most readily perceive, Sir, that by a participation with other members of the community in a measure which self-preservation demands, I am not giving any official sanction to a step which considered in the abstract is illegal, and which nothing but the extreme necessity of the case could warrant -- If called upon, on the contrary I am obliged to acknowledge it's [sic] illegality, and to say, as I now do, that measures of the nature contemplated must rest entirely upon the responsibility of your military command -- I can neither officially advise nor share in any thing inconsistent with the strictest letter of the law. Still, however, in a private communication which I wish this to be considered, I have no objections if you will allow me the liberty to deliver my opinion merely as a Member of Society, as to what may be expedient under present circumstances.

The Country must not be lost by a too scrupulous attention to forms, and where the civil administration of Justice is found inadequate to our protection in times perilous, and unusual as the present, recourse must be had to measures more efficacious. These measures you Honor seems resolved to adopt, and in another part of this Province where certainly the necessity is not more urgent, they have been acted upon, and the Public have felt the beneficial result.

In order, however, that their operation may be more regular and complete, I would suggest that your Honor should by private letters of Instruction, (something like the one which I presume to enclose) by several of the most respectable Gentlemen of the place to report to you the characters they deem suspicious, and transmit as regular and full information as can be obtained of any acts they may have committed in opposition to the Govt and against the general good of our cause -- This report Your Honor will see, to be merely private for your information, and to enable you to make up your mind, and deliver to Major Stuart the necessary orders respecting the characters it concerns. It will be satisfactory to yourself to be sure that you are acting upon the opinion of unprejudiced persons, and will show that you are governed by the purest intentions in the necessary exercise of any irregular power.

Of the persons liberated by the Americans from our gaol, some are gone off in their fleet, I shall see that the Sheriff does his duty in apprehending the rest and committing them for trial, and wherever acts admitting of legal proof have been committed, the offenders, I think, if circumstances make it possible had better be regularly charged, and detained till the Assizes.

Allow me to press upon Your Honor the necessity of making public the laws of the last Session of the Legislature.

Since the private communication which I had the Honor to make to Major Genl. DeRottenburg of the 9th Instant, I received your letter of the same date, and have to say in answer to it that altho' the characters of those people are generally deemed suspicious, I know of no particular information that can be procured of any distinct offence committed by them -- It would be well if the Persons who communicate with His Honor upon these subjects could furnish something more definite than common report -- They may have done so in this instance, and if they have I should much wish some hint to be communicated to me, that I might have something to direct me in any inquiries.

With respect to a special Commission for the trial of offenders, the circuit Commissions having been issued, and the praecepts sent, precludes the possibility of any sitting until some time in November next, unless the Courts in the other Districts are totally omitted --

Upon the reference to Connor's case to me I beg leave to state that in my opinion the offence detailed in Col. Drummond's deposition amounts not to High Treason --

In a moral point of view Connor certainly discovered a treasonable intention, and he acted from a treasonable motive, but the only branch of High treason defined by our Law to which this case can refer is that of "adhering to the King's Enemies," which adherence must be in deed and fact & not in imagination. To make therefore the act in question, an overt act of Adherence the intelligence given by Connor must have been actually given to the enemy, or some person in league with them -- The facts sworn to by Col. Drummond sufficiently prove that Connor was willing to afford the Enemy every information in his power, and that indeed, he conceived he was doing so, but that he did give information to the enemy is not true, because he had neither directly nor indirectly communication with them.

This, to be sure is not necessary to complete the criminality of intention, but it is necessary to constitute the offence ---

It shd also be remarked that it appears from Col. Drummond's deposition that this affair was entirely between himself & Connor, so that the Crown would be without the two witnesses necessary to convict in High Treason -- However Connor's guilt may as an Offence of less enormity be severely punished by the law --

In answer to your letter requesting my opinion whether Mr. Peters, being a half pay Officer, is not subject to martial law, I beg leave to state that in one instance where this question came into discussion, it was decided in ye affirmative, but that case differed from the present in this particular that the officer then to be tried had committed the offence while on service, and in the receipt of full pay, and it was doubted whether being afterwards reduced as a half pay-officer he could be brought to a Court martial to answer for it.

After much hesitation, however, it was, I believe, determined that he might. However, in my judgment it would be an exercise rather of power than of right to bring Mr. Peters now living as a civilian before a Court martial to answer for any offence merely civil committed by him as an Individual Member of Society, and unconnected with any military duty or service.

That the Crown can at any moment command his services in the Station from which he was reduced, I have no doubt, but until it thinks proper to do so, I do think Mr. Peters not amenable to the rules incident to such service, as it would seem unjust to subject him to the most rigorous operation of rules by which he is not ordinarily governed, and which are only incident to a service of which he does not now receive the full advantages.

This, my impression of the matter I submit with deference to His Honor whose knowledge of things belongg to the military department make him better acquainted with the footing upon which reduced officers stand with respect to the service, than I have an opportunity of becoming.

I have the honor to be Sir
Your most Obedient Humble Servant
Jno. B Robinson
Actg. Atty Genl.